I cannot imagine what it must be like as an appellate court judge to
have to write these words:
Construing the facts in the light most favorable to [Trey]
Sims, a reasonable police officer would have known that
attempting to obtain a photograph of a minor child's erect
penis, by ordering the child to masturbate in the presence
of others, would unlawfully invade the child's right of
privacy under the 4th Amendment.
I don't know which is sadder: the fact that this case -- the absolute
nadir (so far!) of stupid teen sexting prosecutions -- even exists or
that the lower court somehow found in favor of the officer (now
deceased) being sued.
A cop engaged in the act of producing child pornography by attempting to
force a teen to arouse himself while surrounded by police officers
supposedly for the purpose of matching the teen's erect penis to photos
the cop already had in his possession as part of a sexting
"investigation". The officer was told by prosecutors to do this, which
shows the twisted logic of this abhorrent request didn't spring entirely
from the mind of Detective David Abbott. He, however, did not turn down
the prosecution's request. The prosecutor who ordered this "production"
of evidence was Claiborne Richardson. Unfortunately, he has the sort of
immunity cops like Abbott can only dream about: absolute immunity.
Richardson walks away from this with little more than reputational
damage.
There's a judge out there somewhere with their name scrawled across a
granted warrant request ordering a teenager to produce an erection for
cops. Actually, there's two of them, though both go unnamed in the
decision. (Oral arguments are embedded at the bottom of the post.) From
the dissent's footnote:
On this record, search warrants were issued on June 3, 2014,
and again on July 1, 2014, by two different magistrates.
The June warrant was the only one executed. In executing
the June warrant, Abbott was unable to obtain some of the
photos being sought. Because the prosecutor and the detective
agreed that additional photos were necessary, Abbott was
directed to seek the July warrant. That warrant was never
executed and was voided.
And there's the judge who heard the prosecution's request to get this
warrant and said that was fine. That judge's name is Jan Roltsch-Anoll.
All of these justice system components worked together to put a teen in
a room full of cops with the instructions to masturbate so a detective
could take photos.
Abbott's representation was willing to take a chance on seeing the lower
court's awful immunity decision upheld, despite there being nothing
remotely sane -- much less 4th Amendment-compliant -- about law
enforcement's actions. Detective Abbott's survivors continue his fight
for him as Abbott killed himself in late 2015 as police tried to arrest
him for allegedly molesting two teens he met coaching youth hockey.
(Make of that what you will.)
The 4th Circuit Court of Appeals finds nothing at all to like about
Abbott's pleas for qualified immunity.
Abbott's search directed at forcing Sims to achieve an
erection intruded "upon an area in which our society
recognizes a significantly heightened privacy interest."
See Winston v. Lee, 470 U.S. 753, 767 (1985). Requiring Sims
to masturbate in the presence of others, like searches
involving physical penetration of genitalia, constituted
"the ultimate invasion of personal dignity". Amaechi, 237
F.3d at 363-64; see also King, 825 F.3d at 215.
Moreover, we observe that this sexually intrusive search
was rendered more egregious by being conducted in a manner
that would instill fear in Sims. See Edwards, 666 F.3d
at 884-85. Here, Sims alleged that he was "surrounded" by
three armed officers as he questioned whether he was
required to submit to Abbott's orders. Upon Abbott's
insistence, Sims ultimately attempted to comply. Sims
further alleged that the search caused him to suffer
emotional harm. Winston, 470 U.S. at 761-63 (explaining that
intrusions without risk of physical harm nonetheless damage
the individual's sense of personal privacy and security).
Accordingly, both the outrageous scope of the sexually
intrusive search and the intimidating manner in which the
search was conducted weigh strongly against any finding that
the search was reasonable.
We cannot perceive any circumstance that would justify a
police search requiring an individual to masturbate in the
presence of others.
Abbott's estate argued the search violated no clear precedent. In other
words, no comparative case had reached this level in the justice system
and found ordering a teen to masturbate in front of police officers
(while one of them photographed him) was a clearly established violation
of the 4th Amendment. The court agrees, but notes there's a very good
goddamn reason why there's no precedent exactly on point with this
abysmal abuse of power.
We further observe that the Administrator is not entitled
to invoke qualified immunity simply because no other court
decisions directly have addressed circumstances like those
presented here. See Clem, 284 F.3d at 553. For good reason,
most outrageous cases of constitutional violations rarely are
litigated. See K.H. ex rel. Murphy v. Morgan, 914 F.2d 846,
851 (7th Cir. 1990) (explaining that never before had there
been a case accusing welfare officials of selling foster
children into slavery, but those officials nevertheless would
not be entitled to immunity). Abbott